File folders with a small lock in the corner

Will the CCPA and Other State Privacy Laws Face Constitutional Attack?

California Privacy Law, Privacy Law , , , , ,

Image Credit: Pettycon from Pixabay

This article is Part 2 of 3 in a series exploring proposed federal privacy laws and constitutional concerns of privacy laws in the United States. Part 3 will discuss the constitutional challenges facing a proposed federal privacy law. 

In the first part of this series, we examined several federal privacy bills proposed this year, as Congress eagerly tries to pass a single harmonizing federal law. The issue of preemption continues to divide Republican and Democrat lawmakers, however, with the former in favor of an express provision allowing preemption stricter state privacy laws such as the CCPA and the latter largely against such a provision. 

Regardless of whether a federal law passes, with an express preemption provision, state privacy laws are still at risk of constitutional attacks. There are two primary ways that a state privacy law may be challenged: (1) invalidation under the Dormant Commerce Clause, and (2) invalidation under First Amendment grounds. State legislators contemplating the passage of their own privacy laws will need to consider these constitutional issues in the drafting phase, or risk facing opposition on constitutional grounds.

Continue Reading Will the CCPA and Other State Privacy Laws Face Constitutional Attack?
Gold gavel on platform

Searching for the One Ring to Rule Them All: A Look at 8 U.S. Federal Privacy Bills

Class Actions, Privacy Law , , , ,

Image Credit: 3D Animation Production Company from Pixabay

This article is Part 1 of 2 in a series exploring proposed federal privacy laws in the United States. Part 2 will discuss the constitutional challenges facing not only a proposed federal privacy law but those facing existing state privacy laws as well.

As predicted in our Privacy Law Forecast for 2019, legislators have raced to introduce national privacy regulation in both the House and Senate this year.

In contrast to the European Union’s GDPR, a hodgepodge of sectoral laws govern privacy in specific industries: medical, financial, educational, and marketing sectors, among others. States have enacted laws to protect their residents. And on top of that, Section 5 of the Federal Trade Commission Act (15 U.S.C. § 45) grants authority to the FTC to enforce against unfair and deceptive acts and practices.

This all results in a confusing and burdensome “patchwork” of national, state and sectoral rules. (For more in-depth discussion on the current U.S. privacy regulatory landscape, please see American Privacy Laws in a Global Context.)

Given this regulatory environment, legislators are keen to put forth a single federal privacy law to standardize this “patchwork” and forestall the passage of dozens more state privacy bills. Some have set a deadline, hoping to pass a federal privacy law before the CCPA comes into effect on January 1, 2020. Since the start of 2019, lawmakers have introduced about 230 bills that regulate privacy in some way in either the House or Senate.

The following is a sample of comprehensive bills from both sides of the aisle. Though these bills are unlikely to pass committee, they indicate what policies lawmakers are considering in the current negotiations:

Continue Reading Searching for the One Ring to Rule Them All: A Look at 8 U.S. Federal Privacy Bills
Federal Trade Commission logo

The FTC Ramps Up Privacy Enforcement

Federal Trade Commission, FTC Privacy Enforcement - Antitrust, Privacy Law , , , ,

Following increased congressional scrutiny over its data privacy enforcement practices in 2018, the FTC has ramped up its enforcement actions in recent months, giving some real bite to current federal privacy laws:

  • On February 27, 2019 the FTC filed a complaint against the operators of lip-syncing app Musical.ly—now known as TikTok – for failing to seek parental consent before collecting the personal information of users under the age of 13. In response to the FTC’s complaint, TikTok agreed to pay a $5.7 million settlement to the agency, marking the largest-ever COPPA fine in US history.
  • Throughout March, the FTC obtained settlements against 4 separate robocall operations: NetDotSolutions, Higher Goals Marketing, Veterans of America, and Pointbreak Media. These cases charged these separate entities for violations of the FTC Act (unfair and deceptive trade practices) and the agency’s Telemarketing Sales Rule (TSR) – including its Do Not Call (DNC) provisions.
  • On March 26, 2019 the FTC announced a broad inquiry into the data collection practices of broadband companies under Section (b) of the FTC Act. The agency issued orders to AT&T Inc., AT&T Mobility LLC, Comcast Cable Communications doing business as Xfinity, Google Fiber Inc., T-Mobile US Inc., Verizon Communications Inc., and Cellco Partnership doing business as Verizon Wireless, seeking information about the collection, retention, and sharing of personal information. The FTC investigation highlights recent consumer concerns about data privacy and tracking by ISPs, following high-level acquisitions of content providers like AOL, Yahoo, and DirectTV. We are watching closely, as this may be the start of one of the first joint privacy-antitrust enforcement actions by the FTC.

These enforcement actions highlight the FTC’s role as the de facto data protection authority for the United States. Yet, the FTC’s mandate extends far beyond data privacy, and includes regulatory authority over false advertising claims, anticompetitive behavior, and merger review. While Congress continues to debate the passage of a federal bipartisan privacy bill, it behooves them to keep in mind the current staff and funding limitations of the FTC in any proposed drafts.

Picture of Lily Li on Critical Mass Radio

Metaverse Law on Critical Mass Radio Show

California Privacy Law, Privacy Law ,

On February 13, 2019, Lily Li of Metaverse Law appeared on Critical Mass Radio Show to discuss trends in privacy law and general pointers for businesses. Three takeaways from the show include:

  1. Regardless of the size of your company, consider data privacy. The size of your company itself is not as relevant as is the customer data you process. Even if you are a small company, but have a large customer base, chances are you should be looking at the data privacy regulation in your state. If you have customers overseas, such as in Europe, it is important to realize that you will then fall under European privacy laws. Privacy laws have to do with where your customers are, rather than simply where your company is based. Be aware and do your research to ensure that you are complying to the regulation that impacts your firm.
  2. Data belongs to the individual. While in the past, customer data was thought of as the company’s intellectual property, this is no longer the case. Customer data belongs to the individual, so treat it like it is their property ­ not just yours. Your clients have the right to tell your company what they want (and don’t want) done with their data, so it is crucial to ensure that you have a process in place to comply and verify with your customer.
  3. Put your data house in order. Data security affects many departments in your company, from the front end to the back end. As such, it is important to find a workflow so customer data is protected throughout its entire life cycle. Start by gathering all of your company’s department heads together in a room and ask them this key question: “Where do you store data?” From there, it will be clear what needs to be addressed when it comes to your data.

Listen to the full interview here:

Pole with sign saying "future".

Privacy Law Forecast for 2019

California Privacy Law, GDPR, Privacy Law , , , , , , , ,

Image Credit: ID 23689850 © Steve Ball | Dreamstime.com

This past year was quite a whirlwind for privacy and cybersecurity watchers. Just to sum up a few of the top events of last year:

  • Facebook’s Cambridge Analytica scandal rocked political headlines
  • Europe introduced the GDPR, the most comprehensive data protection legislation to date in the world
  • California enacted the California Consumer Privacy Act, becoming the first US state to create GDPR-style rules
  • Google came under fire for allowing app developers to read your email, and track your location (even with location tracking off!)
  • Marriott’s guest reservation system was hacked, exposing the personal information of up to 500 million guests, including passport numbers and payment numbers for some of those hacked

What will happen in 2019? Here are our top 5 predictions:

Continue Reading Privacy Law Forecast for 2019

1 … 3 4 5 6 7